(PC) Bolds v. Leuvanos, et al.

Filing 79

ORDER DENYING 77 Plaintiff's Second Motion for Appointment of Counsel Without Prejudice, signed by Magistrate Judge Stanley A. Boone on 02/07/2024. (Maldonado, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JON-ERIK ROOSEVELT BOLDS, JR.,

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Plaintiff,
v.
LUEVANOS, et al.,,

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No. 1:21-cv-01668-NODJ-SAB (PC)
ORDER DENYING PLAINTIFF’S SECOND
MOTION FOR APPOINTMENT OF
COUNSEL, WITHOUT PREJUDICE
(ECF No. 77)

Defendants.

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Plaintiff is proceeding pro se and in forma pauperis in this civil rights action filed pursuant
to 42 U.S.C. § 1983.
Currently before the Court is Plaintiff’s second motion for appointment of counsel, filed

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February 6, 2024. Plaintiff seeks appointment of counsel due indigency, incarceration, limited

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knowledge of the law, limited access to the law library, and potential conflicting testimony.

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There is no constitutional right to appointed counsel in this action, Rand v. Rowland, 113

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F.3d 1520, 1525 (9th Cir. 1997), and the Court cannot require any attorney to represent plaintiff

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pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. United States District Court for the Southern

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District of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the

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Court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113

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F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek
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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, the district court must evaluate both the likelihood of success

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on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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In the present case, the Court does not find the required exceptional circumstances. Even

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if it assumed that Plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. The Court is faced with

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similar cases almost daily. While the Court recognizes that Plaintiff is at a disadvantage due to

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his pro se status and his incarceration, the test is not whether Plaintiff would benefit from the

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appointment of counsel. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (“Most

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actions require development of further facts during litigation and a pro se litigant will seldom be

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in a position to investigate easily the facts necessary to support the case.”) The test is whether

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exception circumstances exist and here, they do not. At this stage of the litigation, the Court

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cannot find Plaintiff is likely to succeed on the merits, as Defendants have filed a motion for

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summary judgment. In addition, circumstances common to most prisoners, such as lack of legal

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education and limited law library access, do not establish exceptional circumstances that would

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warrant a request for voluntary assistance of counsel. Accordingly, Plaintiff’s second motion for

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the appointment of counsel is denied, without prejudice.

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IT IS SO ORDERED.
Dated:

February 7, 2024
UNITED STATES MAGISTRATE JUDGE

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